Hans Kelsen (1881–1973)

I read this book as part of my "update". along with other books about Kelsen, first in Italian (as I needed to pick up quotes in Italian), but currently I found and I going to re-read the English version (as, anyway, the Italian version is based upon the English version)

Actually, the motivation was that in a Yale course available online that I followed in the early 2010s, Kelsen was quoted, along with Schmitt and others (I shared in the past my reviews on other books on the same theme).

Why now?

Because currently I am living in Italy, and as the Fall of the Berlin Wall in 1989 resulted eventually in a re-arrangement of the country that still has to be settled (the so-called "Seconda Repubblica"), this unsettled status after the re-assuring cocoon of the Cold War is being again questioned.

Reasons? While many in Italy live the Brexit debate as something not directly affecting Italy or, at the other extreme, as a business opportunity (as Italy weren't part of the EU), in reality Brexit is yet another instance of those opportunities to apply the "Monnet" and jump forward or, at least, radically restructure, within the EU integration.

The Italian issue is that, by adopting an inward-looking approach, we risk being "neither"- neither outside, nor inside, simply "in between", and considered at best an opportunistic ally and market to use.

Rethinking the structure and cohesive elements of the State implies also rethinking the concept of law in a country where it seems that creating a new law or regulation, and associated bureaucratic infrastructure, is always the solution.

Only to discover, somewhat later, that that resulted in yet another "self-regulated bureaucratic tribe" that does as it pleases, notably cutting corners whenever feels that it is either right or useful to do so.

Tinkering with a Constitution is never wise, but tinkering by simply "taking loans" from those of others is irresponsible- unless somebody is so detached from reality to assume that a country can be a bit German on this, a bit French on that, a bit British on that, while having or refusing to "harmonize" any behavior that contradicts those cultural frameworks.

Being Italian, I use Italy as a discussion point- but due to its influence, and, as I said, the current rethinking of Europe as well as international institutions, instead of looking at writing laws and treaties, considering the underlying philosophy and "teleology" matters.

Moreover, when, as some already started doing, there are proposal to offload tribunals by "automating" some lower impacts (i.e. higher volume, lower per-unit-value) cases.

Which, incidentally, as the cases that define the "spirit" of social cohesion and civility.… (more)

Hans Kelsen had an unusual theoretical aptitude. His theory of law is so general, in an Aristotelian way, that one can imagine someone reading it with keen interest even a thousand years from now. However, I didn’t quite enjoy this book as much as his General Theory of Law and State. At times his theoretical purity becomes a burden which restrains his thought too much. His arguments make sense, but the explanatory step from premise to conclusion is so short that every part of the argument is quite self-evident, and therefore not very interesting.

The author frequently emphasizes that his pure jurisprudence, which has quite misleadingly been translated as ”science” of law in this English translation, is independent of the ”political” aspects of law. This is somewhat disappointing from a philosophical point of view, because it means that the author disavows any considerations that have to do with legitimacy and illegitimacy. According to him, a ”valid” constitution can be put in force by any revolutionary victor, no matter how absurd and unfair its content may be. Dictators across the world could quote the Pure Theory of Law to prove that their coercion is based on ”valid” grounds.

The English translation of this book also seems a bit wobbly at times. The real meaning of some sentences has clearly been lost in translation, others are just overly complicated. I liked the chapters on the state and international law most, but the book mentioned above is a much broader analysis of these subjects. The concluding chapter on legal interpretation was also nice, but very short. Overall this is a book for the ages, but only for a very narrow community of legal scholars. Let's hope they won't serve dictatorial governments. The audience of this book could have expanded significantly if the theory had been a little bit less ”pure”.… (more)

Whereas Kelsen’s General Theory of Law and State is a work for the ages, this book became outdated in a decade. Written in 1945, the book examines the writings of Lenin, Stalin, Marx and Engels to discover what they say about things like the state, socialism, capitalism and democracy. The subtitle ”a critical analysis” is partly warranted since Kelsen certainly sees through the egalitarian facade that Soviet dictators erected, but this book isn’t nearly as critical of communist political theory as it would have been if written a few decades later. Tragic historical events eventually exposed communist ideology for the sham it was, so there’s not much point today in studying this early attempt at theoretical refutation.… (more)

I expected this book to be a timeless and general analysis of international law, but I was mistaken. This book is very much grounded in the year 1944 when it was written. The league of Nations has failed, the war may be coming to an end and numerous questions about new international organization and law have to be resolved. The author attempts to pose and answer some of those questions in this book. For the most part his analysis is linked too closely to current events to carry general interest, so I would recommend this book only to readers who are specifically interested in the legal thought that preceded the United Nations charter.… (more)